Arlene S.

IN THE COURT OF SPECIAL APPEALS OF MARYLAND Appeal No. 00087 September Term, 2014 JASPER AND MARIE CUMMINGS Appellants v. EDWARD S. COHN, ET AL. AS SUBSTITUTE TRUSTEES Appellee Appeal from the Circuit Court for Prince George’s County (The Honorable Toni E. Clarke) APPELLANT’S BRIEF AND RECORD EXTRACT Submitted by: Arlene A. Smith-Scott, Esquire Strategic Law Group, LLC 367 Main Street Laurel, Maryland 20707 PH:- FAX:--Attorney for Appellant TABLE OF CONTENTS I. TABLE OF CONTENTS II. TABLE OF CITATIONS III STATEMENT OF THE CASE IV STATEMENT OF THE QUESTIONS PRESENTED V STATEMENT OF FACTS VI STANDARD OF REVIEW VII SUMMARY OF THE APPELLANT’S ARGUMENT i. Whether the April 30, 2013 foreclosure sale which was conducted without notice to Appellants deprived the Appellants of a property interest in violation of the due process clause of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. ii. Whether the Circuit Court erred in denying the Motion to Vacate Foreclosure and the Motion to Reconsider after the Trustees located in Maryland provided an affidavit based on personal knowledge stating that the Appellants were sent first class mail and certified mail and later providing a secondary affidavit from an employee of High Cotton Marketing, iii. Whether the Circuit Court erred in denying the Motion for Reconsideration of the Motion to Vacate foreclosure procured by fraud on new evidence based on an Affidavit by United States Postal Service Manager who conducted a postal investigation and found that the claim notice by the Trustee of certified mail purporting to comply with Real Property Article 7-105 had never entered the postal system, had never been scanned and the Trustees did not provide an original green cards or the original postal receipt. VIII CONCLUSION IX AFFIDAVIT OF SERVICE X VERBATIM TEXT OF ALL RELEVANT CASES, STATUTES, RULES, AND RELEVANT DOCUMENTS TO THE FACTS OF THIS CASE TABLE OF AUTHORITIES Andresen v. Andresen, 317 Md. 380, 564 A.2d 399 (1989) . . . . . . . . . . . . . . . . . 22 Bierman v. Hunter, 190 Md. App. 250, 988 A.2d 530 (2010) . . . . . . . . . . . . . . . 19 Billingsley v. Lawson, 43 Md. App. 713, 406 A.2d 946 (1979) . . . . . . . . . . . . . . . 23 College Park v. Jenkins, 150 Md. App. 254, 819 A.2d 1129 (2003) . . . . . . . . . . . . . .23 Davis v. Attorney General, 187 Md. App. 110, 975 A.2d 362 (2009) . . . . . . . . . . . . 22 Denton National Bank of Maryland v. Lynch, 155 Md. 333, 142 A. 103 (1928) . . . . . . . . . 18 Fleisher Co. v. Grice, 245 Md. 248, 226 A.2d 153 (1967) . . . . . . . . . . . . . . . . 12 Fleisher v. The Fleisher Company, et al, 60 Md. App. 565, 483 A.2d 1312 (1984) . . . . . . . 22 Hresko v. Hresko, 83 MD. App. 228, 574 A.2d 24 (1990) . . . . . . . . . . . . . . . 23 Island Financial, Inc. v. Ballman, 92 Md. App. 125 (1992) . . . . . . . . . . . . . . . 11 Knapp v. Smethurst, 139 Md. App. 676, 779 A.2d 970 (2001) . . . . . . . . . . . . 10, 11 Le Marc’s Management Corp. v. Valentin, 349 Md. 645, 709 A.2d-) . . . . . . . . . 19 Maryland Environment Trust v. Gaynor, 370 Md. 89, 803 A.2d 512 (2002) . . . . . . . . . Maryland Steel Co., v. Marney, 91 Md. 360, 47 A. 1077 (1900) . 19 . . . . . . . . . . . . . . 23 Matthews v. Eldridge, 424 U. S. 319, 96 S. Ct. 893, 47 L.Ed 2d 18 (1976) . . . . . . . . . . . 10 Mennonite Board of Mission v. Adams, 462 U. S. 791 (1983) . . . . . . . . . . . . . . . 11 Mullane v. Central Hanover Bank and Trust Co., 339 U. S. 306 (1950) . . . . . . . . . . . . 10 North v. Town Real Estate Corp., 191 Md. 212, 60 A.2d 665 (1948) . . . . . . . . . . . . . 18 Orsi v. Kirwood, 999 F.2d 86 (4th Cir. 1993) . . . . . . . . . . . . . . . . . . . 16 People’s Counsel v. Maryland Pub. Serv. Comm’n, 355 Md.1, 25 (1999) Roberts v. Total Heal Care, Inc., 349 Md. 499, (1998) . . . . . . . . . 12, 13 . . . . . . . . . . . . . . . . 12, 13 Samuels v. Tschechtelin, 135 Md. App. 483, 763 A.2d 209 (2000) Scheve v. McPherson, 44 Md. App. 398, 408 A.2d 1071 (1979) . . . . . . . . . . . . . 10 . . . . . . . . . . . . . . 23 Shephard v. Burson, No. 110, Sept. Term, 2011, Decided, August 20, 2012 . . . . . . . . . 11 St. George Annunciation Orthodox Christian Church v. Aggarnal, 326 Md. 90 (1992) . . . . . United States v. Throckmorton, 98 U. S. 61, 25 L.Ed 93(1878) . 15 . . . . . . . . . . . . . . . 22 Ventresca v. Weaver Bros., 266 Md. 398, 292 A.2d 656 (1974) . . . . . . . . . . . . . . . 23 VF Corp. v. Wrexham Aviation Corp., 350 Md. 693, 715 A.2d 188 (1998) . . . . . . . . . . . 19 Warfield v. Dorsey, 39 Md. 299 (1874) . . . . . . . . . . . . . . . . . . . . . . 11 Webb v. Midland Credit Mgmt., 2012 U. S. Dist. Lexis 80006 (N. D. Ill., May 31, 2012) Weitz v. MacKenzie, 273 Md. 628, 331 A.2d 291 (1975) . . . . . 9 . . . . . . . . . . . . . . . . 22 CONSTITUTIONS, STATUTES AND ORDINANCES U.S.C.A. Const. Amend. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Md. Const. Declaration of Rights, Art. 24 . . . . . . . . . . . . . . . . . . . . . . . 4 MARYLAND RULES Federal Rules of Civil Procedure, 56 . Maryland Rule 5-602 . . . Maryland Rule 2-535 . . . Maryland Rule 14-206 . . Maryland Rule 14-209 . . . . Maryland Rule 14-210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 . . . . . . . . . . . . . . . . . . . . . . 4, 16 . . . . . . . . . . . . . . . . . . . . . . . 4 . . . . . . . . . . . . . . . . . . . . . . . 11, 12 . . . . . . . . . . . . . . . . . . . . . . . . 4, 17 . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 9, 17 Maryland Rule 14-305 . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 23, 24 Real Property 7-105 . . . . . . . . . . . . . . . . . . . . . . . . 1, 11, 12, 16, 17, 25 BOOKS AND OTHER LITERATURE K. C. Davis & R. J. Pierce, Jr., Administrative Law Treatise Section 9.4 at 35 (3rd ed. 1994) . . . 10 Lawrence Tribe, American Constitutional Law, Section 10-15, at 732(2d ed. 1988) . . . . . . . 10 TABLE OF CONTENTS FOR ABSTRACT Circuit Court Docket Entries . E. 1 E. 6 E. 9 . . . . . . . . E. 18 . . . . . . . . . . . . . . . . . . E. 21 Defendant’s Reply to the Evidence in the Plaintiff’s Response to the Defendant’s Motion to Vacate Order Ratifying Foreclosure Sale as Fraudulent and is Meant to Mislead the Judiciary . . . . . . . . . . . . . E. 26 Motion for Possession . . . . . . . . . . . . . . . . . . . . . . . . E. 35 Request for Enforcement of Judgment . . . . . . . . . . . . . . . . . . E. 39 Instructions to Sheriff . . . . . . . . . . . . . . . . . . . . . . . . E. 40 Defendant’s Motion to Vacate Order Ratifying Foreclosure Sale of Real Property Located at 11000 Spyglass Hill Drive, Bowie, MD 20721 . . . . E. 42 Affidavit Pursuant to Md. Ann. Code RP Specs and Maryland Rule 14-210 . . . E. 58 Consent Order Terminating Automatic Stay . . . . . . . . . . . . . . . . E. 87 Defendant’s Response to Plaintiff’s Opposition to the Motion Opposing Ratification of Sale Due to Court’s Lack of Jurisdiction and the Fact that Exceptions to the Sale Exist . . . . . . . . . . . . . . . . . . . . . 90 . . . . . . . . . . . . . . . . . . . Order of the Circuit Court, March 14, 2014 . . . . . . . . . . . . . . . Motion to Reconsider the Order of Court Dated March 14, 2014 . Defendant’s Response to Plaintiff’s Motion for Possession . Plaintiff’s Motion for Possession. . . . . . . E. Defendant’s Motion Opposing Ratification of Sale Due to Court’s Lack of Jurisdiction and the Fact that Exceptions to the Sale Exist . . . . . . E. 113 Affidavit Pursuant to Maryland Rule 14-209(D) of Notice Pursuant to Prince George’s County Code section 13-1102 . . . . . . . . . . . . . . E. 124 Affidavit of Auctioneer E. 127 The Prince George’s Post – Advertisement of Real Property Foreclosure . . . . E. 128 Correspondence from Plaintiff to the Clerk of Court. . . . . . . . . . . . . E. 132 . . . . . . . . . . . . . . . . . . . . . . Foreclosure Mediator’s Notification of Status . Final Loss Mitigation Affidavit . . . . . . . . . . . . . . E. 137 . . . . . . . . . . . . . . . . . . . E. 142 Affidavit of Personal Delivery of Final Loss Mitigation . Affidavit of Default . . 148 . E. 176 E. 199 E. 219 . . . . . . . . . . . . . . . . . . . . . . Notice of Intent to Foreclosure . Deed. . . . . . . . . . E. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . STATEMENT OF THE CASE On April 30, 2013, Richard Rogers as Substitute Trustee, by Appointment of Substitute Trustee (E-150) filed a foreclosure action in the Circuit Court for Prince George’s County, known as Case No. CAE- against the Defendants, Jasper and Marie Cummings, who are the owners of real property located at 11000 Spyglass Hill Drive, Bowie, Maryland 20721. The foreclosure sale was conducted on April 30, 2013 and the purchaser at sale was the noteholder, Federal National Mortgage Association (Fannie Mae), Purchaser, for the sum of $536,695.77 per the Report of Sale. (E-119) Counsel for the Trustee filed an Affidavit Pursuant to Md. Ann. Code RP Secs. 7-105.2(C)(3)(II), 7-105.3(D)(2), and Maryland Rule 14-210(E), of Notice by Mail Pursuant to Md. Ann Code RP Secs, 7-105.2(C), 7-105.3(B) and Rule 14-210(B)(1) and (C)” states, “I hereby affirm under the penalty of perjury that the persons authorized to make the sale in this action have complied with the notice requirements of . . . by mailing notice of the time, place and terms of sale, by certified mail and by first class mail to the borrower(s), the record owner(s) of the property, and the holder of any subordinate interest in the property subject to the lien . . . “ (E-121 and E-122) On or about May 30, 2014, the Defendants filed their “Motion Opposing Ratification of Sale Due to Court’s Lack of Jurisdiction and the fact that Exceptions to the Sale Existed.” The Defendants made several statements, as to the issue of notice, the Defendants stated, “The Plaintiff failed to send notice by registered or certified mail to the Defendants notifying them of the impending foreclosure sale.”(E-114) On December 5, 2014 by Richard J. Rogers who was the Substitute Trustee directing the foreclosure sale states that, “I have reviewed the records of the substitute Trustees and have personally seen and reviewed the copies of the Notice of Sale as well as the “returned” certified mail envelopes to the defendants coming back from the post office as “unclaimed”. (E-74) On December 18, 2013, the Defendant provided the court with an affidavit by Tracy D. Daniels who is a manager with the United States Postal Service and was employed for twentyone years who stated the following: “The first tracking number was- and the second tracking number was- which the Plaintiffs held out as the certified mail that was “allegedly” addressed to the Defendants, Jasper Cummings and Marie Cummings. She stated, “After checking our computer system and performing an internal audit, I have found that the tracking number- and- had not been utilized or processed within the postal service system; therefore, we are not able to establish the receipt of an article of certified mail, letter, package, etc. through the United States Postal Service system.” She continued by stating, “If tracking number had indeed been utilized, the United States Postal Service would have had a record of the transaction, which would include the Label number, type of Service, Status of the Lien, Date and Time, Location as well as FeaturesArrival at the unit Scan by the Postal Staff.” (E-46) On January 7, 2014, the Plaintiff provided an affidavit from Stacie Lee who stated “under the penalties of perjury that the following statements are true and correct. . . . That I am employed as Implementation Manager by High Cotton USA, Inc., d/b/a High Cotton Direct Marketing (hereinafter referred to as “High Cotton”) which is employed by Cohn, Goldberg & Deutsch, LLC for the purpose of mailing out by first class and certified mail their foreclosure notice of sale.” (E-13) On January 14, 2014, a second affidavit from Tracy D. Daniels, the manager with the United States Postal Service was submitted to the court: (E-29) “On January 13, 2014, I was asked again to check on the above tracking numbers; I checked our online system, “Recent Items” and “Items over 45 Days” and discovered that these tracking numbers were still never utilized through the United States Postal Service. Even “unclaimed certified mail” would be in our system and available for tracking. I was forward a copy of the unclaimed mailing receipt and the back of the Domestic Return Receipt. Upon inspection and further review, this is what I discovered: a. There is nothing indication that the courier ever received the mail. At each attempt to deliver certified mail, the carrier will notate the letter with “NL” which means Notice Left. . . b. As each mail enters the postal system, it is given a postal bar code which reflects the destination zip code. Here, the destination zip code is Towson, Maryland, which is a zip code of 21204. However, the destination zip code should have been 20721, which is Bowie, Maryland. c. The postal bar codes reflect specific tasks. Here, on the return Receipt Label that was provided by the Plaintiff the last several numbers on the top right hand corner reflects first, the route number and second, and the date of mailing. There is 00, which is not a correct route number. . . d. The evidence that has been provided by the Plaintiffs are missing the following items: i. ii. iii. iv. USPS Bar Code showing Received in Postal System Green Card Carrier Notation Inability to Track Documents On the 14th of March, 2014, the Honorable Judge Toni E. Clarke issued an order stating, “As the basis for their Motion, Defendants argue that Substitute Trustees did not notify Defendants of the date and time of the April 30, 2013 foreclosure sale, as required by Maryland Rule 14-210(b). Upon review of the file, Defendants made this same argument in their Motion Opposing Ratification of Sale.” (E-6) QUESTIONS PRESENTED i. Whether the April 30, 2013 foreclosure sale which was conducted without notice to Appellants deprived the Appellants of a property interest in violation of the due process clause of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. ii. Whether the Circuit Court erred in denying the Motion to Vacate Foreclosure and the Motion to Reconsider after the Trustees located in Maryland provided an affidavit based on personal knowledge stating that the Appellants were sent first class mail and certified mail and later providing a secondary affidavit from an employee of High Cotton Marketing, iii. Whether the Circuit Court erred in denying the Motion for Reconsideration of the Motion to Vacate foreclosure procured by fraud on new evidence based on an Affidavit by United States Postal Service Manager who conducted a postal investigation and found that the claim notice by the Trustee of certified mail purporting to comply with Real Property Article 7-105 had never entered the postal system, had never been scanned and the Trustees did not provide an original green cards or the original postal receipt STATEMENT OF FACTS The Appellants, Jasper and Marie Cummings, refinanced their residence located at 11000 Spyglass Hill Drive, Bowie, Maryland 20721 on or about January 14, 2008, which is evidenced by a Deed of Trust dated January 14, 2008 and recorded among the Land Records of Prince George’s County, Maryland at Liber No. 29722, Folio 567. (E-159) The Appellants entered into an agreement which was supported by the “The Interest-Only Period Fixed Rate Note.” (E-178) On October 12, 2012, an “Affidavit of Default and Notice of Intent to Foreclosure Pursuant to Md. Ann. Code RP section 7-105 (D) (I) (II) 1. And 2.B was included in the Order to Docket Foreclosure of Deed of Trust on Residential Owner-Occupied Property which was filed in the Circuit Court on November 27, 2012. (E.156) The Substitute Trustees hired Robert McArtor with Mid-Atlantic Auctioneers, LLC to auction the real property at the foreclosure sale. (E-127) The court file contains the Contract of Sale at Public Auction. (E-130). The Trustees, Mortgagees, Attorneys or Foreclosure Bond was filed on April 30, 2013 with the Circuit Court. The Appellee provided an “Affidavit Pursuant to Md. Ann. Code RP Secs. 7105.2(C)(3)(II), 7-105.3(D)(2), and Maryland Rule 14-210(E), Of Notice by Mail Pursuant to Md. Ann Code RP Secs, 7-105.2(C), 7-105.3(B) and Rule 14-210(B)(1) and (C)” states, “I hereby affirm under the penalty of perjury that the persons authorized to make the sale in this action have complied with the notice requirements of . . . by mailing notice of the time, place and terms of sale, by certified mail and by first class mail to the borrower(s), the record owner(s) of the property, and the holder of any subordinate interest in the property subject to the lien . . . “ The Substitute Trustees conducted the foreclosure sale of property located at 11000 Spyglass Hill Drive, Bowie, Maryland 20721 on April 30, 2013 at 11:00am. The real property was purchased by Federal National Mortgage Association (Fannie Mae), Purchaser, for the sum of $536,695.77 per the Report of Sale. (E-119) The Appellants filed a bankruptcy on May 22, 2013. (E-115) On or about September 24, 2013, the Appellants and the Appellees entered into an agreement with the bankruptcy court, “Consent Order Terminating Automatic Stay.” (E-87) On or about 27th of June, 2013, the Appellant filed “Defendant’s Response to Opposition to the Motion Opposing Ratification of Sale Due to Court’s Lack of Jurisdiction and the Fact that Exceptions to the Sale Exist.” (E-90) As it pertained to the issue of notice, the Defendant’s stated in Paragraphs 3 and 7, “the Defendant has verified with the USPS website that the tracking number was not used as of June 24, 2013.) (E-90) In Paragraphs 4 and 8, the Appellants continued by stating, “Also, the Defendant has verified with the local branch of the Postal Service in Laurel, Maryland that this tracking number was not used.” The Appellants also provided for the Court as Exhibits 1, 2, 3 and 4 the tracking and confirmation receipts. (E-93 thru E-96) The Appellants even provided an example of what the United States Postal Service tracking should look like, if it was properly entered into the system. (E-97). On or about November 4, 2013, the Appellants filed a “Request for Hearing on Motion Opposing Ratification of Foreclosure Sale.” (E-77) The Appellants relied upon Rule 14-305(d) (2) provides, “The court shall hold a hearing if a hearing is requested and the exceptions or any response clearly show a need to take evidence.” They continued by stating “On the issue of discovery related to exceptions to foreclosure sales, Gordon on Maryland Foreclosures explains, “On request, most Circuit Court judges will allow a reasonable period of time for depositions and document production before the hearing, albeit, substantially less time than in routine civil litigation.” (E.77) The Affidavit that was filed with the Circuit Court on December 5, 2014 by Richard J. Rogers who was the Substitute Trustee directing the foreclosure sale states that, “I have reviewed the records of the substitute Trustees and have personally seen and reviewed the copies of the Notice of Sale as well as the “returned” certified mail envelopes to the defendants coming back from the post office as “unclaimed”. (E-74) On the 5th day of December, 2013, the Honorable Judge John P. Davey denied the Appellants Motion Opposing Ratification of Sale Due to Court’s Lack of Jurisdiction and the Fact that Exceptions to the Sale Exist. As it pertains to the issue of notice, Judge Davey wrote, “Defendants next argue that Plaintiff failed to notify them of the impending foreclosure sale by registered or certified mail. However, in their Opposition, Plaintiffs attach copies of the notices sent to Defendants by both first class and certified mail. This Court finds that Plaintiffs properly notified Defendants of the sale.” (E-72) On or about the 20th day of December, 2013, the Appellants filed, “Defendant’s Motion to Vacate Order Ratifying Foreclosure Sale of Real Property Located at 11000 Spyglass Hill Drive, Bowie, Maryland 20721.” (E-42) The significance of this motion is the fact that the Appellants provided the court with an Affidavit by Tracy D. Daniels who is a manager with the United States Postal Service and was employed for twenty-one years. She has no stake in the outcome of the case. She stated that she had been requested by Legal Counsel to review the tracking numbers that were provided by the Appellees. There was two tracking numbers that was provided to her. (E-46) The first tracking number was- which the Appellees held out as the certified mail that was “allegedly” addressed to the Appellant, Jasper Cummings. She stated, “After checking our computer system and performing an internal audit, I have found that the tracking number- has not been utilized or processed within the postal service system; therefore, we are not able to establish the receipt of an article of certified mail, letter, package, etc. through the United States Postal Service system.” She continued by stating, “If tracking number had indeed been utilized, the United States Postal Service would have had a record of the transaction, which would include the Label number, type of Service, Status of the Lien, Date and Time, Location as well as Features-Arrival at the unit Scan by the Postal Staff.” (E-46) The second tracking number was- which the Appellees held out as the certified mail that was “allegedly” addressed to the Appellant, Marie Cummings. She stated, “After checking our computer system and performing an internal audit, I have found that the tracking number- has not been utilized or processed within the postal service system; therefore, we are not able to establish the receipt of an article of certified mail, letter, package, etc. through the United States Postal Service system.” She continued by stating, “If tracking number had indeed been utilized, the United States Postal Service would have had a record of the transaction, which would include the Label number, type of Service, Status of the Lien, Date and Time, Location as well as Features-Arrival at the unit Scan by the Postal Staff.” (E-46) In the Plaintiff’s Response to the Defendant’s Motion to Vacate order Ratifying Foreclosure Sale, the Plaintiff provided an affidavit by Stacie Lee, which was dated January 7, 2014, that stated “I, Stacie Lee, hereby verify under the penalties of perjury that the following statements are true and correct. . . . That I am employed as Implementation Manager by High Cotton USA, Inc., d/b/a High Cotton Direct Marketing (hereinafter referred to as “High Cotton”) which is employed by Cohn, Goldberg & Deutsch, LLC for the purpose of mailing out by first class and certified mail their foreclosure notice of sale.” She continued by stating, “That on April 11, 2013 at the request of Cohn, Goldberg & Deutsch, LLC, High Cotton sent out the notices for the foreclosure sale of 11000 Spyglass Hill Drive, and that the attached is a copy of the stamped receipt from the United States Post Office reflecting the thirteen (13) certified mailings.” (E-13) It turns out that High Cotton Direct Marketing, 2901 Allon Way, Birmingham, Alabama 35210. (E.14) Yet, on the purported copy of the envelope that was alleged to be unclaimed did not have the stamp reflecting the origination stamp from the United States Postal Service which should have been 35210. (E-32) After receiving the affidavit by Stacie Lee, the Legal Counsel took the document to the United States Postal Service to verify the information. Instead of receiving verification, the Manager at the United States Postal Service stated the following in a second affidavit dated January 14, 2014. (E-29): “On January 13, 2014, I was asked again to check on the above tracking numbers; I checked our online system, “Recent Items” and “Items over 45 Days” and discovered that these tracking numbers were still never utilized through the United States Postal Service. Even “unclaimed certified mail” would be in our system and available for tracking. I was forward a copy of the unclaimed mailing receipt and the back of the Domestic Return Receipt. Upon inspection and further review, this is what I discovered: a. There is nothing indication that the courier ever received the mail. At each attempt to deliver certified mail, the carrier will notate the letter with “NL” which means Notice Left. . . b. As each mail enters the postal system, it is given a postal bar code which reflects the destination zip code. Here, the destination zip code is Towson, Maryland, which is a zip code of 21204. However, the destination zip code should have been 20721, which is Bowie, Maryland. c. C. The postal bar codes reflect specific tasks. Here, on the return Receipt Label that was provided by the Plaintiff the last several numbers on the top right hand corner reflects first, the route number and second, and the date of mailing. There is 00, which is not a correct route number. . . d. The evidence that has been provided by the Plaintiffs are missing the following items: 1. USPS Bar Code showing Received in Postal System 2. Green Card 3. Carrier Notation 4. Inability to Track Documents On the 14th of March, 2014, the Honorable Judge Toni E. Clarke issued an order stating, “As the basis for their Motion, Defendants argue that Substitute Trustees did not notify Defendants of the date and time of the April 30, 2013 foreclosure sale, as required by Maryland Rule 14-210(b). Upon review of the file, Defendants made this same argument in their Motion Opposing Ratification of Sale.” She continues by stating, “Defendants have presented no new evidence or arguments in their instant Motion to support their allegation that the Substitute Trustees did not comply with the requirements of Md. Rule 14-210(b), nor have they presented any other evidence that would warrant vacating the ratification of the sale.” (E-6) I. Whether the April 30, 2013 foreclosure sale which was conducted without notice to Appellants deprived the Appellants of a property interest in violation of the due process clause of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. The Due Process clauses in the Federal Constitution and Article 24 of the State of Maryland’s Declaration of Rights protect an individual’s interests in substantive and procedural due process. In Knapp v. Smethurst, 139 Md. App. 676, 779 A.2d 970 (2001) stated that there is no requirement that actual prejudice be shown before denial of due process can be established in an action alleging the denial of procedural due process in violation of a property interest under the Federal and State Constitutions. Justice Jackson, writing for the Supreme Court in Mullane v. Central Hanover Bank and Trust Co., 339 U. S. 306 (1950) stated, “many controversies have raged about the cryptic and abstract words of the Due Process Clause, but there can be no doubt that at a minimum they require that deprivation of life, liberty or property, but adjudication be preceded by the notice and opportunity for hearing appropriate to the nature of the case.” The court in Samuels v. Tschechtelin, 135 Md. App. 483, 763 A.2d 209 (2000) discussed four categories of a due process action by stating, “(1) a procedural due process claim premised on the deprivation of a property interest; (2) a procedural due process claim premised on the deprivation of a liberty interest; (3) a substantive due process claim premised on the deprivation of a property interest; and (4) a substantive due process claim premised on the deprivation of a liberty interest.” “Procedural due process imposes constraints on governmental decision that deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause . . .” Matthews v. Eldridge, 424 U. S. 319, 96 S. Ct. 893, 47 L.Ed 2d 18 (1976). One of the objectives of due process is “to ensure that individuals who have property rights are not subject to arbitrary governmental deprivation of those rights.” K. C. Davis & R. J. Pierce, Jr., Administrative Law Treatise Section 9.4 at 35 (3rd ed. 1994). A fundamental component “of the procedural due process right is the guarantee of an opportunity to be heard and its instrumental corollary, a promise of prior notice.” Lawrence Tribe, American Constitutional Law, Section 10-15, at 732(2d ed. 1988). Among the issues that surfaced during the recent foreclosure crisis was a concern that some homeowners received insufficient warning of an impending foreclosure and, as a result, lacked time to prepare a defense or to pursue loan modification. In response, the General Assembly enacted a statue in 2008 to require that a foreclosing lender provide advance written notice of the borrower of its intention to foreclosure. Shephard v. Burson, No. 110, Sept. Term, 2011, Decided, August 20, 2012. The notice requirements of Real Property Article Section 7-105, the Requirements of Notice of the Pendency of a Foreclosure and Md. Rule 14-206, Procedure Prior to Sale, which specifically requires that person authorized to make the sale shall send notice of the time, place and terms of the sale by certified mail and first class mail to the last known address of the debtor. The Court of Special Appeals in Knapp v. Smethurst, 139 Md. App. 676, 779 A.2d 970 (2001) stated, “The due process requirements of notice and an opportunity to be heard have long been held to apply to tax sales and to foreclosure proceedings.” The requirement of notice and opportunity to be heard have been held to be applicable to tax sale and foreclosure proceedings by the United States Supreme Court and this court. Mennonite Board of Mission v. Adams, 462 U. S. 791 (1983), Island Financial, Inc. v. Ballman, 92 Md. App. 125 (1992). In Island Financial, Inc., 92 Md. App. At 129 the Court noted that a violation of due process requires state action, a lack of notice and violation of a legally protected property interest. That court had no difficulty in concluding that a foreclosure represents stat action, citing Warfield v. Dorsey, 39 Md. 299 (1874), in which the Court of Appeals stated, “The court is the vendor in the case of a sale under the power contained in a mortgage, just as it is a vendor in any other chancery sale.” 92 Md. App. At 131. Just as in the Island case, this Court must determine whether the Appellants had a “legally protected Property Interest” within the ambit of the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights. The Appellants states that the ratification of the foreclosure sale has the ultimate effect of nullifying their interest in the real property that is owed by them. By reviewing the case of Island, there are three prong that should be considered: A) The first question is whether notice was given; B) The second is to determine whether there would have been an undue burden to notify the Appellants; and C) Whether the Appellants had a legally protected right that required notification of the foreclosure sale prior to any state action. I. Substitute Trustee did not Provide Notice of Foreclosure Sale. In the case at hand, the Substitute Trustee was responsible to provide adequate notice to the Appellants of the date, time and place of the foreclosure sale. a. The Affidavit of the Substitute Trustee does not state that they mailed out or overseen mailing. The Substitute Trustee in its affidavit of notice of foreclosure sale stated, “that it reviewed the file and found unclaimed mailed.” The Substitute Trustee submitted the two claim numbers for the package that was supposedly mailed through the United States Postal Service. b. Confirmation Numbers Provided by Substitute Trustee was not in the U. S. P. S system. After an Affidavit by Tracy D. Daniels a Manager with the United States Postal Service was filed with the Appellant’s Motion to Reconsider the Ratification and the Motion to Vacate, which reflected an investigation that stated that the first tracking number was- and the second tracking number was- which the Plaintiffs held out as the certified mail that was “allegedly” addressed to the Defendants, Jasper Cummings and Marie Cummings. Ms. Daniels stated, “After checking our computer system and performing an internal audit, I have found that the tracking number- and- had not been utilized or processed within the postal service system; therefore, we are not able to establish the receipt of an article of certified mail, letter, package, etc. through the United States Postal Service system.” She continued by stating, “If tracking number had indeed been utilized, the United States Postal Service would have had a record of the transaction, which would include the Label number, type of Service, Status of the Lien, Date and Time, Location as well as Features-Arrival at the unit Scan by the Postal Staff.” (E-46) c. Substitute Trustee provided a second affidavit reflecting that they outsourced the mailing to a Company located in Alabama, however, the affidavit did not contain a paid receipt or an envelope with the origination zip code, which would exist if in the U. S. P. S. system. The Substitute Trustee provided an affidavit and ledger from Stacie Lee dated January, 2014 and the address from Alabama, who stated, “That I am employed as Implementation Manager by High Cotton USA, Inc., d/b/a High Cotton Direct Marketing (hereinafter referred to as “High Cotton”) which is employed by Cohn, Goldberg & Deutsch, LLC for the purpose of mailing out by first class and certified mail their foreclosure notice of sale.” (E-13) d. Second Affidavit from Manager, Tracy D. Daniels at the United States Postal Service. “On January 13, 2014, I was asked again to check on the above tracking numbers; I checked our online system, “Recent Items” and “Items over 45 Days” and discovered that these tracking numbers were still never utilized through the United States Postal Service. Even “unclaimed certified mail” would be in our system and available for tracking. I was forward a copy of the unclaimed mailing receipt and the back of the Domestic Return Receipt. Upon inspection and further review, this is what I discovered: 1. There is nothing indication that the courier ever received the mail. At each attempt to deliver certified mail, the carrier will notate the letter with “NL” which means Notice Left. . . 2. As each mail enters the postal system, it is given a postal bar code which reflects the destination zip code. Here, the destination zip code is Towson, Maryland, which is a zip code of 21204. However, the destination zip code should have been 20721, which is Bowie, Maryland. 3. The postal bar codes reflect specific tasks. Here, on the return Receipt Label that was provided by the Plaintiff the last several numbers on the top right hand corner reflects first, the route number and second, and the date of mailing. There is 00, which is not a correct route number. . . 4. The evidence that has been provided by the Plaintiffs are missing the following items: a. b. c. d. USPS Bar Code showing Received in Postal System Green Card Carrier Notation Inability to Track Documents In St. George Annunciation Orthodox Christian Church v. Aggarnal, 326 Md. 90 (1992), the Court of Appeals discussed proper notification when there is a legally protected right and greatly expanded the obligation of a creditor to take all reasonable and necessary steps to locate a party affected by a governmental action. With the expansion of information now available through electronic means, it can only be expected that the requirements imposed upon a creditor would be further expanded to meet the explosion of available information. II. Whether the Circuit Court erred in denying the Motion to Vacate Foreclosure and the Motion to Reconsider after the Trustees a) provided an affidavit based on personal knowledge stating that the Appellants were sent first class mail and certified mail, b) when the affidavit by the Substitute Trustee actually states that it reviewed the file, and, c) providing a secondary affidavit from an employee of High Cotton Marketing who stated the notice was sent from Alabama, outside of the personal knowledge of the Substitute Trustee. The Standard of Review to be met by Appellants, Jasper and Marie Cummings, to set aside or vacate an enrolled decree is to provide clear and convincing proof of fraud, mistake or irregularity under Maryland Rule 2-535. The moving party bears the burden of initially producing evidence sufficient to show that the Judgment in question was the product of fraud, mistake or irregularity per Fleisher v. The Fleisher Company, et al, 60 Md. App. 565, 483 A.2d 1312 (1984). The court in United States v. Throckmorton, 98 U. S. 61, 25 L.Ed 93(1878) stated: “Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise, or where the defendant never had knowledge of the suit, being kept in ignorance by the acts for the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side, these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and fair hearing.” There has been ample case law in Maryland which has held under such circumstances that the failure to give notice which actually prevents an adversarial trial is sufficient to authorize vacating an enrolled judgment. Billingsley v. Lawson, 43 Md. App. 713, 406 A.2d 946 (1979) cert denied December 20, 1979. In that case, the Court of Special Appeals, quoting Ventresca v. Weaver Bros., 266 Md. 398, 292 A.2d 656 (1974). Fraud is extrinsic when it actually prevents an adversarial trial but it is intrinsic when it is employed during the course of the hearing which provides the forum for the truth to appear, albeit, the trust was distorted by the complained of fraud. Maryland Steel Co., v. Marney, 91 Md. 360, 47 A. 1077 (1900). In College Park v. Jenkins, 150 Md. App. 254, 819 A.2d 1129 (2003), the Court of Special Appeals vacated the lower court order. The Court concluded the facts if proved did constitute extrinsic fraud and the dispute was therefore material. The court defined fraud as extrinsic when it actually prevents an adversarial trial. In determining whether or not extrinsic fraud exists, the question is not whether the fraud operated to cause the trier of fact to reach an unjust conclusion, but whether the fraud prevented the actual dispute from being submitted to the fact finder at all. Hresko v. Hresko, 83 MD. App. 228, 574 A.2d 24 (1990). In court in Scheve v. McPherson, 44 Md. App. 398, 408 A.2d 1071 (1979), defined constructive fraud as a “breach of a legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others . . . As a primary example, we recognized that most cases involving constructive fraud “have involved the failure to give proper and legally required notice of the proceedings, or of some critical stage of the proceedings, to the former owner.” Following a sale, the clerk is to publish a notice identifying the property and stating that the sale will be ratified unless “cause the contrary” is shown within 30 days of the date of the notice. Maryland Rule 14-305(c). During that period, a borrower may file written exceptions that describe any alleged “irregularity with particularity.” Maryland Rule 14-305(d). The rule further provides that the court is to ratify the sale if (1) no exceptions are filed within the 30-day period or any that were made have been overruled and (2) the court is satisfied that “the sale was fairly and properly made.” Maryland Rule 14305(e). If the court does not find that the sale was “fairly and properly made”, it may issue an “appropriate” order. Maryland Rule 14-305(e). The Appellants filed timely exceptions to the foreclosure sale. One of the exceptions was the fact that the Appellee had failed to give notice to the Appellants as required under the provisions of the Md. Code (1974, 1996 Repl. Vol, 1999 Supp) section 7-105 of the Real Property Article and Md. Rule 14-206, it is a condition precedent to the sale of property in an action to foreclose a mortgage that there be Notice of Sale given to the Mortgagor, Record Owners and others. In Fleisher Co. v. Grice, 245 Md. 248, 226 A.2d 153 (1967). The Court of Appeals held that requirements of notice of foreclosures must be strictly complied with. The United States Constitution, Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights due process clauses protect one’s interest in substantive and procedural due process. People’s Counsel v. Maryland Pub. Serv. Comm’n, 355 Md.1, 25 (1999); Roberts v. Total Heal Care, Inc., 349 Md. 499, (1998). The case at bar involves a procedural and substantive due process action for a state sanctioned deprivation of a property interest. “The provisions governing mortgage foreclosures, including the requisite notice to debtors and record owners of the property, are set forth in the Real Property Article of the Maryland Code and implementedby the Maryland Rules. See Md. Code (1974, 1996 Repl. Vol, 1999 Supp) section 7-105 of the Real Property Article (“R.P.”); Maryland Rule 14-201 et seq. R. P. section 7-105 is titled “Sales” R.P. section 7-105(b) provides in part: (b) Notice to record owner of property; limitations of actions (1)(i) in this subsection, “record owner” means the person holding record title to property as of the later of: (1) By certified mail, postage prepaid, return receipt requested, bearing a postmark from the United States Postal Service, to the record owner, and (2) By first class mail (iii) The person giving the notice shall file in the proceedings: (1) A return Receipt; or (2) An Affidavit that: A) The provisions of this paragraph have been complied with;” In the case at hand, we have an affidavit from the Substitute Trustee that states the provisions of the Annotated code of Maryland or the Maryland Rules has been complied with, yet, in all actuality the Substituted Trustee does not admit, acknowledge, state, concede, grant, confess, etc. that he actually was the person who sent or oversaw by regular mail or by certified mail, the notice to the Appellants that the foreclosure sale was to take place on a particular date, time or place. He states that he saw an unclaimed mail in the file, on or after April 30, 2014, when he reviewed the file. He does not state how this unclaimed mail even got in the file. Then nine months later, the Substitute Trustee provides an affidavit by a person located in Alabama, who works in a facility called High Cotton Marketing, who supposedly sent out the certified mail with several other documents to be sent out in the State of Alabama, yet, the alleged “unclaimed mail” does not reflect the zip codes for the Alabama origination point. Not only is the Alabama origination point not listed on the alleged “unclaimed mail.” The Substitute Trustee did not provide the court with the original copy of the unclaimed mail. This is significant because the Manager at the United States Postal Service states that the labels are easy to take off of the envelopes and place on a different envelope, so the original envelope would have help make that determination. The actual paid receipts by the Substitute Trustee or High Cotton Marketing was missing, not there, not available for review, etc. A paid receipt for a certified mail should have been easy to provide to the court as evidence that the certified mail actually went out. Not to mention the various items that was missing per the affidavit of the Manager at the United States Postal Service. The tracking numbers for the certified mail,- and- were not utilized or processed within the USPS system which meant that there would be no label number, type of service, status of the item, date and time, location as well as features. There was no USPS bar coding showing received in the USPS system. There was no green card. There was no carrier notation. And, there was an inability to track the packages. The totality of the circumstances suggests that the certified mail was not sent as required by the Maryland Rules. Also, the Appellant argues that the Substitute Trustee does not have the authority to delegate the notice provision when the courts are relying upon the affidavits that are provided to the court as proof of notice. If a Substitute Trustee states that he did not send the notice or oversea staff, but an “alleged” unclaimed document was in the file, that in itself, is not NOTICE of a foreclosure sale. III. Whether the Circuit Court erred in denying the Motion for Reconsideration of the Motion to Vacate foreclosure procured by fraud on new evidence based on an Affidavit by United States Postal Service Manager who conducted a postal investigation and found that the claim notice by the Trustee of certified mail purporting to comply with Real Property Article 7-105 had never entered the postal system, had never been scanned and the Trustees did not provide an original green cards or the original postal receipt The common law courts in Maryland have inherent power as courts of record to strike out judgments improperly rendered. North v. Town Real Estate Corp., 191 Md. 212, 60 A.2d 665 (1948). The rule requiring the motion to strike out judgments to be filled at the time when entered applies where the party has knowledge of the judgment. Denton National Bank of Maryland v. Lynch, 155 Md. 333, 142 A. 103 (1928). In Bierman v. Hunter, 190 Md. App. 250, 988 A.2d-), stated that the circuit court exercises broad equitable powers in a foreclosure action. “It is as old as falsehood and as verable as human ingenuity.: But it is not simply a label that may be applied to any set of puzzling circumstances. A popular legal reference defines “fraud” as “a knowing misrepresentation of the truth or concealment of a material fact or a misrepresentation made recklessly without belief in its truth to induce another to act to his or her detriment.” Black’s Law Dictionary 731 (9th Ed. 2009). It further defines “fraud on the court” “a lawyer’s or party’s misconduct so serious that it undermines or is intended to undermine the integrity of the proceeding. Examples are bribery of a juror and introduction of fabricated evidence. The tort of fraud similarly is based on a knowing or reckless misrepresentation. Maryland Environment Trust v. Gaynor, 370 Md. 89, 803 A.2d 512 (2002). The tort of fraud or deceit generally requires proof: (1) that the one perpetrating the fraud made a false representation to the victim; (2) that its falsity was either known to the perpetrator or that the representation was made with reckless indifference as to its truth; (3) that the misrepresentation was made for the purpose of defrauding the victim; (4) that the victim relief on the misrepresentation and had the right to rely on it; and (5) that the victim suffered compensable injury resulting from the misrepresentation. Maryland Environment Trust v. Gaynor, 370 Md. 89, 803 A.2d 512 (2002). VF Corp. v. Wrexham Aviation Corp., 350 Md. 693, 715 A.2d 188 (1998): Le Marc’s Management Corp. v. Valentin, 349 Md. 645, 709 A.2d-). The nature of the representations that were made is relevant. The Court had good reason to rely on the representations or to have confidence in the affidavit of the Substitute Trustees. However, the presence of the affidavit by Stacie Lee for High Cotton Marketing, along with the various items that were missing suggest an attempt at defrauding the court and actually defrauding the court, given the fact that the Judge relied upon the Substitute Trustee’s affidavit versus requesting additional proof or evidence of actual mailing of notice to the Appellants. These statements amount to fraud. The fruits of the postal service investigation in the form of the two separate affidavits were attached to a timely filed Motion for Reconsideration. Those postal investigations concluded that the certified mail claimed to have been sent by the Appellee to the Appellants never entered the postal system and had not been tracked as received or attempted to be delivered or returned. The postal investigator pointed out that the return receipt card did not contain identifying ink marks which the letter would have displayed as sprayed on the card when it went through the system, if it had gone through the postal system. The additional evidence, the two separate affidavits reflecting the postal service investigation, further emphasized the lack of any notice at any address as called for by statute and court rule and constitutional requirements for procedural and substantive due process. The Appellee’s lack of notice of the filing or the pendency of the foreclosure sale was evident in the Affidavit by the Substitute Trustee that states that he reviewed the file and saw an unclaimed mail. The Substitute Trustee does not state that he actually mail by first class or by certified mail the notice nor does he state that he oversaw the fact that notice was supposedly sent by first class mail or by certified mail. In fact, the affidavit dated April 30, 2014, was not filed in the Circuit Court until after the foreclosure sale. It was not until January 7, 2014, nine months after the foreclosure sale, did the Substitute Trustee include an affidavit by Stacie Lee with High Cotton Marketing out of Alabama, that stated that High Cotton Marketing actually mailed on behalf of the Substitute Trustee. However, that affidavit failed to provide a paid receipt from the postal service. And after the postal service investigation which is reflected in the second affidavit from Tracy D. Daniels, the copy of the unclaimed mail did not reflect the zip code for Alabama as the origination zip code and the postal service investigation questioned the document, itself. However, the original document was not supplied to the Circuit Court for Prince George’s County nor was it supplied to the Appellants for verification. That evidence taken as credible by the Court would mean that no notice was sent to either Jasper Cummings or to Marie Cummings, the Appellants, as it concerned the foreclosure sale date. The supporting Affidavits and postal inspection give rise to a fair inference of a patent fraud on the Court, perpetrated by the Trustee in filing the foreclosure action and the proceedings which followed. CONCLUSION The Appellant respectfully requests this Court after hearing to reverse the Circuit Court and remand the case for further proceedings after vacating the enrolled judgment as procured by fraud and violated due process rights found in the United States Constitution and Article 24 of the Maryland Declaration of Rights. Certificate of Compliance I hereby certify, pursuant to Maryland Rules 8-112 and 8-504, that this brief was printed with proportionately spaced 13 point font, Times New Roman style, with at least 1.5 spacing between the lines and the text, except headings, indented quotations and footnotes. ______________________________ Arlene A. Smith-Scott, Esq. 0 CERTIFICATE OF SERVICE I hereby certify that on July 17, 2014, two copies of the brief were served, by first class mail or overnight delivery, to the following persons: Edward S. Cohn, Esquire Cohn, Goldberg and Deutsch 600 Baltimore Avenue, Suite 208 Baltimore, Maryland 21204 Attorney for Appellant ______________________________ Arlene A. Smith-Scott, Esq.